TX3: No REP in a LEO’s thumb drive left in a police station computer

Defendant police officer had no reasonable expectation in a thumb drive that he left attached to a computer at the police station that had no identifying marks on it and was not encypted. He stored police reports on it. When the thumb drive was found in the computer, it was opened by another to figure out who owned it, and child pornography was found on it. Miller v. State, 2011 Tex. App. LEXIS 1752 (Tex. App.—Austin March 9, 2011):

The first factor supports Miller’s position. Miller testified that the thumb drive was his “private possession,” and the State did not dispute this fact. Thus, Miller had a possessory interest in the thumb drive. However, the other relevant factors weigh against a finding of objective reasonableness. Although Miller testified that he did not share his thumb drive with others, he also testified that he had given Lieutenant Corbett permission to return the thumb drive to his box if it was ever found. Miller had left the drive at work on multiple occasions, and the drive was returned to him on those occasions. The district court could have reasonably inferred that in order to return the drive to Miller, others must have taken temporary possession of the drive and possibly accessed it to ascertain whether it belonged to Miller. Thus, Miller did not exercise complete dominion or control over the drive, at least during the times he had misplaced it. The record also supports a finding that Miller did not take precautions to maintain his expectation of privacy. Again, Miller did not mark the drive with his name, badge number, address, or telephone number. And, despite his knowledge of computers, Miller did not protect his drive with a password or secure the drive in a locked case. Instead, on the occasion in question, Miller left the drive connected to the patrol-room computer where it was easily accessible to others. Furthermore, Miller also testified that he used the thumb drive for storing police activity reports, which the district court could have reasonably inferred was not a private use. Finally, Miller’s claim of privacy in a computer device that stores work-related data is not consistent with historical notions of privacy. See, e.g., Voyles v. State, 133 S.W.3d 303, 306 (Tex. App.—Fort Worth 2004, no pet.) (concluding that appellant “did not have a reasonable expectation of privacy with regard to his work computer and the materials stored in it” because, among other reasons, computer was used for work-related purposes).